Document Type

Article

Publication Title

The Yale Law Journal Forum

Volume

133

Publication Date

2024

Keywords

supreme court, fraud, citizens united

Abstract

The Supreme Court keeps striking down wire fraud convictions. Why?

As I show in this piece, from the 1970s to this year, the Court has repeatedly attempted to shift the framework of fraud cases from moral language to morally neutral language. As a result, the Court ends up making a hash of statutory interpretation, because it then has to interpret statutes that it has effectively rewritten. For instance, much of the current fraud jurisprudence revolves around defining what property means. The Mail Fraud statute does not have the language of property in it, and the legislative history does not involve a discussion of property, but in a prior effort to narrow the scope the Court added deprivation of a "traditional property interest" to its fraud definition. The hunt for the meaning of property--among the most contested topics in law--in a bid-rigging case works out about as well as you'd expect.

Two extremely short, consequential wire-fraud cases from 2023 illustrate the problems created by this trend. In Percoco v. United States, the Court concluded that jury instructions regarding kickbacks during his time as an unpaid advisor violated Percoco’s due-process rights. In Ciminelli v. United States, the Court held that Ciminelli did not deprive anyone of “property” when he schemed with government officials to rig a bid. Both decisions are deeply flawed, and surprising because unlike, say, Citizens United, they lack the rigorous back and forth that defines the campaign finance corruption cases.

The result of this trend is that fraud statutes are both narrowed and confused. The democratic cost is significant. And because the Court is terse to the point of obfuscation, we must speculate: I argue that moral crimes are deeply uncomfortable for these justices, and they therefore exercise gymnastics to avoid condemning elite fraud.

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